Deason v. Colvin
ORDER by Judge Philip A. Brimmer on 9/28/15. ORDERED: The decision of the Commissioner that plaintiff Tammy Jan Deason was not disabled is AFFIRMED. (kpreu)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-01558-PAB
TAMMY JAN DEASON,
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
This matter is before the Court on plaintiff Tammy Jan Deason’s complaint
[Docket No. 1] filed on June 3, 2014. Plaintiff seeks review of the final decision of
defendant Carolyn W. Colvin (the “Commissioner”) denying plaintiff’s claim for disability
insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act (the “Act”), 42 U.S.C. §§ 401-33 and 1381-83c. T he Court has
jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 405(g).
On June 6, 2011, plaintiff applied for disability insurance benefits and
supplemental security income under Titles II and XVI of the Act. R. at 104. Plaintiff
initially alleged that she had been disabled beginning October 1, 2010, but later
amended her alleged disability onset date to January 9, 2012. Id. After an initial
administrative denial of her claim, plaintiff appeared at a hearing conducted by an
Administrative Law Judge (“ALJ”) on February 19, 2013. Id. On March 1, 2013, the
ALJ denied plaintiff’s claim. Id. at 122. The ALJ found that plaintiff had the severe
impairments of urinary frequency, degenerative joint disease of the lumbar spine,
degenerative joint disease of the left hip, chronic pain, major depressive disorder, posttraumatic stress disorder, and anxiety/panic disorder. R. at 107. The ALJ found that
these impairments, alone or in combination, did not meet or medically equal one of the
regulations’ listed impairments, id. at 109, and found that plaintiff had the residual
functional capacity (“RFC”) to
stand/walk at least four hours in an 8-hour workday and sit at least six hours
in an 8-hour workday, but needs to alternate between sitting and standing
throughout the day while continuing to work. [Plaintiff] can lift ten pounds
frequently and 20 pounds occasionally. [Plaintiff] must be permitted regular
breaks every two hours secondary to urinary frequency. [Plaintiff] can work
in close proximity to others and accept routine supervision, but cannot be a
member of a team or work with the public. She is limited to simple, routine,
and repetitive tasks that do not involve strict pace (such as an assembly line)
or strict production quotas; instead she needs to be able to control the pace
of her work so long as she meets productivity expectations.
Id. at 110. Based upon this RFC and in reliance on the testim ony of a vocational
expert (“VE”), the ALJ concluded that “there are jobs that exist in significant numbers in
the national economy that [plaintiff] can perform.” Id. at 121.
The Appeals Council denied plaintiff’s request for review of the ALJ’s denial. R.
at 1. Consequently, the ALJ’s decision is the final decision of the Commissioner.
Plaintiff represents that, after the ALJ’s denial of her claim, plaintiff filed a new
application for benefits and was granted disability benefits beginning March 2, 2013.
Docket No. 15 at 24, n.6.
A. Standard of Review
Review of the Commissioner’s finding that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standards and
whether the decision is supported by substantial evidence in the record as a whole.
See Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). T he district court may
not reverse an ALJ simply because the court may have reached a different result
based on the record; the question instead is whether there is substantial evidence
showing that the ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d
534, 536 (10th Cir. 1990). “Substantial evidence is more than a mere scintilla and is
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). Moreo ver,
“[e]vidence is not substantial if it is overwhelmed by other evidence in the record or
constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.
1992). The district court will not “reweigh the evidence or retry the case,” but must
“meticulously examine the record as a whole, including anything that may undercut or
detract from the ALJ’s findings in order to determine if the substantiality test has been
met.” Flaherty, 515 F.3d at 1070. Nevertheless, “if the ALJ failed to apply the correct
legal test, there is a ground for reversal apart from a lack of substantial evidence.”
Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
B. The Five-Step Evaluation Process
To qualify for disability benefits, a claimant must have a medically determinable
physical or mental impairment expected to result in death or last for a continuous
period of twelve months that prevents the claimant from performing any substantial
gainful work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2).
[a]n individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists
in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A) (2006). The Commissioner has established a five-step
sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R.
§ 404.1520; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). The steps of the
(1) whether the claimant is currently working; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets an
impairment listed in appendix 1 of the relevant regulation; (4) whether the
impairment precludes the claimant from doing his past relevant work; and
(5) whether the impairment precludes the claimant from doing any work.
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citing 20 C.F.R.
§ 404.1520(b)-(f)). A finding that the claimant is disabled or not disabled at any point
in the five-step review is conclusive and terminates the analysis. Casias v. Sec’y of
Health and Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).
The claimant has the initial burden of establishing a case of disability. However,
“[i]f the claimant is not considered disabled at step three, but has satisf ied her burden
of establishing a prima facie case of disability under steps one, two, and four, the
burden shifts to the Commissioner to show the claimant has the residual functional
capacity (RFC) to perform other work in the national economy in view of her age,
education, and work experience.” See Fischer-Ross v. Barnhart, 431 F.3d 729, 731
(10th Cir. 2005); see also Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). W hile the
claimant has the initial burden of proving a disability, “the ALJ has a basic duty of
inquiry, to inform himself about facts relevant to his decision and to learn the claimant’s
own version of those facts.” Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).
C. The ALJ’s Decision
Plaintiff argues that the ALJ erred in (1) finding that plaintiff’s chronic obstructive
pulmonary disease (“COPD”) and vascular disease are not severe impairments; (2)
concluding that plaintiff does not have an impairment or combination of impairments
that meet or medically equal a listed impairment; (3) determining plaintiff’s RFC; and
(4) assessing plaintiff’s credibility. See generally Docket No. 15. Plaintiff also argues
that the Appeals Council erred in concluding that evidence submitted subsequent to
the ALJ’s decision did not compel a finding that plaintiff was disabled as of her alleged
onset date. Id. at 25; see also Docket No. 19 at 6-8.
1. Step Two Determination of Severe Impairments
Plaintiff argues that the ALJ erred at step two in finding that her COPD and
vascular disease are not severe impairments. The ALJ reasoned that plaintiff’s COPD
was not a severe impairment because, since plaintiff’s amended offset date, she “has
not sought treatment for an acute respiratory exacerbation, does not require the use of
oxygen, and has not had recent pulmonary function tests.” R. at 108. The ALJ further
cited that plaintiff continues to smoke and has not sought treatment for shortness of
breath or other respiratory exacerbation since January 2012. Id. Regarding plaintiff’s
vascular disease, the ALJ reasoned that plaintif f has been pursuing treatment since
October 2012, and that despite the claimed pain, plaintiff continued to walk to and from
the mailbox and to go outside multiple times each day to smoke cigarettes. Id.
Plaintiff argues that she received treatment for asthma on multiple occasions
after January 2012. Docket No. 15 at 15. Plaintiff also states that her vascular
disease was not diagnosed until October 2012 and that her “lengthy period of
treatment” for pain was likely attributable to her vascular disease. See Id. at 17-18.
The Court finds that the ALJ did not err in failing to list plaintiff’s COPD and
vascular disease as severe. First, although plaintiff points to evidence of treatment for
COPD and vascular disease, plaintiff does not point to any evidence suggesting that
those conditions severely limited her ability to work. At step two, plaintiff bears the
burden of proof and must “demonstrate an impairment or combination of impairments
that significantly limits the claimant’s ability to do basic work activity.” Hawkins v.
Chater, 113 F.3d 1162, 1169 (10th Cir. 1997). Second, ev en if plaintiff had satisfied
her burden to show that her COPD and vascular disease are severe impairments, the
ALJ’s step two finding is not reversible error. “Under the regulations, once an ALJ
finds that a claimant has at least one severe impairment, he does not err in failing to
designate other disorders as severe at step two, because at later steps the agency ‘will
consider the combined effect of all of [plaintiff’s] impairments without regard to whether
any such impairment, if considered separately, would be of sufficient severity.’” Barrett
v. Astrue, 340 F. App’x 481, 484 (10th Cir. 2009) (unpublished) (quoting 20 C.F.R.
§ 404.1523). The ALJ “made an explicit finding that [plaintiff] suffered from [a] severe
impairment. That was all the ALJ was required to do” at step two. Oldham v. Astrue,
509 F.3d 1254, 1256 (10th Cir. 2007).
2. Medical Listings
Plaintiff argues that the ALJ considered only plaintiff’s overactive bladder and
degenerative joint disease impairments (and not plaintiff’s “long history of debilitating 
albeit progressive limiting effects of  COPD and associated diseases”) in determining
that plaintiff did not have an impairment or combination of impairments that meet or
medically equal a medical listing. Docket No. 15 at 19. “For a claimant to show that
his impairment matches a listing, it must meet all of the specified medical criteria. An
impairment that manifests only some of those criteria, no matter how severely, does
not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in original).
Plaintiff has the burden at step three of demonstrating that her impairments meet all of
the criteria in a particular listing. Riddle v. Halter, 10 F. App’x 665, 667 (10th Cir. 2001)
(unpublished) (citation and quotation omitted).
The ALJ found that plaintiff’s physical impairments do not meet or medically
equal listings 1.02, 1.04, and 6.00 and that her claim ed mental impairments do not
meet or medically equal listings 12.04 and 12.06. R. at 109-10. Althoug h plaintiff
objects to certain of the ALJ’s findings, she does not specify any listing for which she
believes her impairments satisfy all medical criteria. See Docket No. 15 at 19. Nor
does plaintiff object to the ALJ’s conclusions that her impairments do not meet listing
6.00 et seq. and that her claimed mental impairments do not meet listings 12.04 and
12.06. See id.1 Thus, the Court limits its analysis to whether substantial evidence
supports the ALJ’s determination that plaintiff’s physical impairments do not, alone or
in combination, meet medical listings 1.02 and 1.04. 2
Listing 1.02(A) describes “[m]ajor dysfunction of a joint(s) (due to any cause)”
and requires, in relevant part, “findings on appropriate medically acceptable imaging of
joint space narrowing” and “[i]nvolvement of one major peripheral weight-bearing joint
(i.e., hip, knee, or ankle) resulting in inability to ambulate effectively.” 20 C.F.R. pt.
404, subpt. P, app. 1, § 1.02(A). 3 The ALJ noted that x-rays on plaintiff’s right hip were
normal and that her left hip showed evidence of an old fracture but no acute changes.
R. at 109; see also id. at 666. The ALJ also noted that plaintiff had consistently walked
with a normal gait and had full range of motion as recently as November 17, 2012. R.
at 109; see also id. at 696 (noting that plaintiff “presented with normal posture,
locomotion, and gait”); 656 (“gait and stance were normal”); 710 (“full ROM” in
Plaintiff objects to the ALJ’s findings concerning “Section 1.02 and 1.03 criteria.”
Docket No. 15 at 19. The ALJ did not make any findings concerning medical listing
1.03. The Court construes plaintiff’s argument as a challenge to the ALJ’s findings
concerning medical listings 1.02 and 1.04.
Plaintiff repeats the assertion that the ALJ erred in failing to consider her COPD
and vascular disease at step three. Docket No. 15 at 19. The government responds
that this argument is insufficiently developed. Docket No. 18 at 14. The Court agrees.
Plaintiff does not point to evidence that these conditions meet any medical criteria
specified in either listing 1.02 or 1.04. Absent such a showing, plaintiff has not
demonstrated how these conditions are relevant to the ALJ’s finding.
The ALJ did not specify that her discussion concerned listing 1.04(A) rather than
1.04(B). Nevertheless, the ALJ discussed factors relevant to that listing. Listing
1.04(B) concerns joint disease of the upper extremities. Plaintiff does not claim, and
the record does not support, any such impairment.
extremities). Given the evidence of plaintiff’s normal hip, gait, and range of motion, the
Court finds that the ALJ’s decision that plaintiff’s impairments do not meet or medically
equal listing 1.02 is supported by substantial evidence.4
Listing 1.04 describes “[d]isorders of the spine . . . resulting in compromise of a
nerve root (including the cauda equina) or the spinal cord.” 20 C.F.R. pt. 404, subpt.
P, app. 1, § 1.04. Listing 1.04(A) requires a positive straight-leg raising test. Id.
§ 1.04(A). Listing 1.04(C) requires lumbar spinal stenosis. 5 Id. § 1.04(C).6 The ALJ
noted that plaintiff has regularly had negative straight leg raising tests and that x-rays
taken in October 2012 showed a normal spinal canal. R. at 109. Plaintiff does not
point to any evidence to the contrary and the Court finds that the record provides
substantial evidence for the ALJ’s finding. See id. at 723 (negative straight leg test);
587 (same); 692 (“spinal canal is normal.”).
3. RFC Determination
Plaintiff argues that the ALJ erred in determining her RFC because the ALJ did
not accord “at least great, if not controlling weight” to the opinion of plaintiff’s treating
physician, Dr. Satt. Docket No. 15 at 20-23. Dr. Satt opined in a May 2012
The ALJ’s finding concerns listing 1.02A, which describes involvement of a
“weight-bearing joint,” rather than listing 1.02B, which describes dysfunction of joints in
the upper extremities. 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02. Plaintif f does not
point to any evidence of joint disease in her upper extremities.
Stenosis is “[a] stricture of any canal or orifice.” Stedman’s Medical Dictionary
stenosis (28th ed. 2005).
As with listing 1.02, the ALJ did not specify to which specific listing her analysis
was relevant. Listing 1.04(B), however, requires a showing of spinal arachnoiditis. 20
C.F.R. pt. 404, subpt. P, app. 1, § 1.04(B). As plaintif f does not claim to suffer from
spinal arachnoiditis, the Court confines its analysis to listings 1.04(A) and (C).
assessment that plaintiff was limited to standing and walking no more than an hour per
day, could sit no longer than five hours in an eight-hour workday, and would likely be
absent from work two to three times per month. R. at 676, 680. In August 2012, Dr.
Satt repeated his opinion that plaintiff can sit for five hours in an eight-hour workday
and would be absent from work two to three times per month, but revised his
assessment of plaintiff’s ability to walk, stating that she could stand and walk for one
hour on a sustained basis. Id. at 685. Dr. Satt also opined that plaintif f would need to
take unscheduled breaks every one to two hours for ten to fifteen minutes. Id.
The opinion of a treating physician is generally entitled to greater weight than
that of a non-treating physician because of the unique perspective derived from a
treating relationship. 20 C.F.R. § 404.1527(c)(2). Thus, an ALJ must accord
controlling weight to the opinion of a treating physician where that opinion is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence” in the record. Id. Moreover, the
opinion of a treating physician merits some measure of deference based on an
application of the factors listed in 20 C.F.R. § 404.1527(c)(2), even if it is not entitled to
controlling weight. The ALJ need not discuss each factor, but the ALJ’s decision must
be “sufficiently specific to make clear to any subsequent reviewers the weight the
adjudicator gave to the treating source’s medical opinion and the reasons for that
weight.” Oldham, 509 F.3d at 1258 (quoting Watkins v. Barnhart, 350 F.3d 1297, 1300
(10th Cir. 2003)). “The ALJ must give specific, legitimate reasons for disregarding the
treating physician’s opinion that a claimant is disabled.” Goatcher v. U.S. Dep’t of
Health & Human Servs., 52 F.3d 288, 290 (10th Cir. 1995).
As “findings of a nontreating physician based upon limited contact and
examination are of suspect reliability,” Frey v. Bowen, 816 F.2d 508, 515 (10th Cir.
1987), when such findings conflict with the opinions of a treating physician, the ALJ
must examine the nontreating physician’s report “to see if it outweighs the treating
physician’s report, not the other way around.” Hamlin v. Barnhart, 365 F.3d 1208,
1219 n.13 (10th Cir. 2004) (internal citations omitted). “Unless a treating source’s
opinion is given controlling weight, the administrative law judge must explain in the
decision the weight given to the opinions of a State agency medical or psychological
consultant.” 20 C.F.R. § 404.1527(e)(2)(ii).
Plaintiff argues that the ALJ “made no inquiry into whether Dr. Satt’s opinions
were well supported by medically acceptable clinical and diagnostic techniques.”
Docket No. 15 at 22. The Court disagrees. The ALJ noted that treatment records of
Dr. Satt included x-rays of plaintiff’s spine showing only mild findings and that, on
examination, plaintiff demonstrated “full range of motion, normal strength and
sensation, negative straight leg raises, and a normal gait.” R. at 115. The ALJ further
noted that plaintiff received adequate relief with regular osteopathic manipulation and
injections into her hip. Id. Based on these “mild findings” and “conservative
treatment,” the ALJ concluded that Dr. Satt’s assessment concerning plaintiff’s ability
to sit and stand was not consistent with other medical evidence in the record.
Regarding Dr. Satt’s opinion that plaintiff would likely be absent from work two
to three times each month due to her pain, the ALJ again noted that plaintiff has
pursued “only the most conservative treatment for her pain” and that, before she
transferred treatment to Dr. Satt, chiropractic manipulations and injections helped
relieve her pain. Id. at 116; see also id. at 606 (noting plaintiff’s statement that the
injections “really worked”); 608, 613 (noting additional injections); 612 (noting that
plaintiff had “good relief with injection for two weeks” and “has a job interview flagging
on the highway”). The ALJ also noted that plaintiff’s physical examination was normal
during a November 2012 trip to the emergency room. Id. at 117; 722-724. Finally, the
ALJ noted that Dr. Satt’s assessments were inconsistent with his own observations of
plaintiff. Id. at 115, 117. Namely, in a November 2012 treatment note, Dr. Satt stated
that plaintiff “as usual, does not appear to be in acute distress.” Id. at 703. In sum, the
Court finds that substantial evidence supports the ALJ’s decision to give Dr. Satt’s
opinions little weight.7 Because plaintiff does not argue that the ALJ erred in assigning
weight to any other medical opinion,8 the Court finds that the ALJ did not err in
assessing plaintiff’s RFC.
Plaintiff argues that the ALJ erred in giving little weight to plaintiff’s testimony
concerning her limitations. “Credibility determinations are peculiarly the province of the
Plaintiff states that the ALJ wrongfully limited her review of Dr. Satt’s treatment
to the period beginning January 2012 even though Dr. Satt had treated plaintiff since
1992. Docket No. 15 at 22. Plaintiff points to no relevant evidence prior to January
2012 that undermines the ALJ’s findings, however. Moreover, while the ALJ must
consider, among other factors, the length of the treatment relationship, see 20 C.F.R.
§ 404.1527(c)(2)(i), the ALJ is not required to discuss each factor listed in Section
404.1527(c). Oldham, 509 F.3d at 1258. Here, the ALJ stated that she “considered
opinion evidence in accordance with the requirements of 20 C.F.R. § 404.1527.” R. at
111. The ALJ’s representation, in conjunction with the specific, legitimate reasons cited
for affording Dr. Satt’s opinions little weight, satisfy the ALJ’s burden with respect to
determining plaintiff’s RFC.
Plaintiff also does not argue that the ALJ erred in assigning no weight to Dr.
Satt’s opinions concerning plaintiff’s mental impairments.
finder of fact,” and the Tenth Circuit will uphold such determinations so long as they
are supported by substantial evidence. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.
1995). Credibility determinations should not be conclusory, but instead “closely and
affirmatively linked” to evidence in the record. Id. In assessing a claimant’s credibility,
an ALJ must consider the following factors, in addition to the objective medical
1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of the individual’s pain or
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received
for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to
relieve pain or other symptoms (e.g., lying flat on his or her back, standing
for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual’s functional limitations and
restrictions due to pain or other symptoms.
SSR 96-7p, 1996 WL 374186, at *3 (July 2, 1996); see also 20 C.F.R.
§ 404.1529(c)(4) (“We will consider whether there are any inconsistencies in the
evidence and the extent to which there are any conflicts between your statements and
the rest of the evidence . . . .”). The ALJ must set forth “the specific evidence he relies
on in evaluating the claimant’s credibility,” but is not required to undergo a “formalistic
factor-by-factor recitation of the evidence.” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th
The ALJ noted that, while plaintiff testified that she had chronic neck spasms
and had to lie down frequently during the day, she did not report neck pain to doctors
between December 2011 and November 2012. R. at 115. The ALJ further cited an
inconsistency in plaintiff’s hearing testimony concerning her marijuana use, noting that
plaintiff first testified that she tried marijuana as a pain reliever but no longer used it
because it made her pain worse, and then changed her testimony to state that she had
used marijuana on a regular basis for pain relief in the past and continued to use it f or
pain. Id. at 115; see also id. at 157. The ALJ also relied on Dr. Satt’s treatment note
dated November 29, 2012, in which Dr. Satt stated that plaintiff, “as usual, does not
appear to be in acute distress” and “chastised” plaintif f for obtaining multiple
medications from multiple sources. Id. at 115; 703. Finally, the ALJ concluded that
plaintiff’s testimony that she could only walk for half a block was inconsistent with both
her testimony concerning daily activities (including spending much of the day pacing
and going outside frequently for cigarettes) and with physical examinations that show
full range of motion, normal strength and sensation, negative straight leg raises, and a
normal gait. Id. at 115.
Plaintiff does not argue that the ALJ’s credibility determination is not supported
by evidence in the record or that the ALJ did not specif y the evidence she relied upon.
Indeed, plaintiff concedes that there are “inconsistencies between [plaintiff’s]
complaints of pain and the medical record demonstrating only mild back and joint
conditions” and that plaintiff, in obtaining prescriptions from multiple physicians, may
have been “engaged in pain medication seeking behavior.” Docket No. 15 at 24.
Rather than pointing to a specific error in the ALJ’s credibility finding, plaintiff
speculates that, rather than her claimed impairments, the actual source of plaintiff’s
pain was “most likely the clogged artery.” Id. Plaintiff further states that “later medical
developments in 2013 show that her physical limitations were severe and largely
attributable to the chronic COPD and deteriorating vascular system.” Id. This
speculation does not call into question whether the ALJ’s credibility determination is
affirmatively linked to evidence in the record. Accordingly, the Court finds that the ALJ
did not err in assessing plaintiff’s credibility.
5. New Evidence
Plaintiff argues, primarily in her reply, that the Appeals Council incorrectly ruled
that certain evidence plaintiff submitted was not temporally relevant to the ALJ’s March
1, 2013 decision. See Docket No. 19 at 6-8; see also Docket No. 15 at 25 (citing
statement of Dr. Lee Schmucker dated February 24, 2014).
The submission of new evidence to the Appeals Council is governed by 20
C.F.R. §§ 404.970(b) and 416.1470(b). 20 C.F.R. § 404.970(b) states:
If new and material evidence is submitted, the Appeals Council shall
consider the additional evidence only where it relates to the period on or
before the date of the administrative law judge hearing decision. The
Appeals Council shall evaluate the entire record including the new and
material evidence submitted if it relates to the period on or before the date
of the administrative law judge hearing decision. It will then review the case
if it finds that the administrative law judge’s action, findings, or conclusion
is contrary to the weight of the evidence currently of record.9
If the Appeals Council determines that the newly submitted evidence is not new,
The language of Section 416.1470(b) differs slightly from Section 404.970(b),
but contains the identical requirement that newly-submitted evidence shall only be
considered “where it relates to the period on or before the date of the administrative law
judge hearing decision.”
material, or temporally relevant and therefore declines to consider it, the Appeals
Council’s determination is reviewed de novo. Chambers, 389 F.3d at 1142.
“Evidence is new within the meaning of [20 C.F.R. §§ 404.970(b) and 416.1470(b)] if it
is not duplicative or cumulative.” Lawson v. Chater, 1996 WL 195124, at *2 (10th Cir.
Apr. 23, 1996) (unpublished) (citing Wilkins v. Sec’y, Dep’t of Health & Human Servs.,
953 F.2d 93, 96 (4th Cir. 1991)). “Evidence is material to the determination of disability
if there is a reasonable possibility that [it] would have changed the outcome.” Lawson,
1996 WL 195124, at *2 (citing Wilkins, 953 F.2d at 96). Evidence is “chronologically
relevant” if it “relates to the period on or before the date of the [ALJ’s] decision.” O’Dell
v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994); see also Chambers, 389 F.3d at 1143;
Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997) (“An implicit requirement is that
the new evidence pertain to the time period for which benefits are sought, and that it
not concern later-acquired disabilities or subsequent deterioration of a previously nondisabling condition.”). New evidence showing that plaintiff’s condition deteriorated
“significantly after the date of the Commissioner’s final decision is not a material basis
for remand, although it may be grounds for a new application for benefits.” Jones, 122
F.3d at 1154.
The ALJ issued her decision on March 1, 2013. R. at 122. T he new evidence
that plaintiff submitted to the Appeals Council consists of medical records, the earliest
of which is dated May 15, 2013, see id. at 39-40, and the latest of which is dated
February 24, 2014. Id. at 8-9. The evidence shows that, beginning on May 15, 2013,
plaintiff began treatment with Dr. Lee Schmucker, who noted in his first examination of
plaintiff that plaintiff had “[s]ignificant [COPD] and “significant pain” that made it “hard
for her to function.” R. at 39. Dr. Schmucker prescribed methadone and Zyprexa and
increased plaintiff’s dosage of Lyrica. Id. On June 24, 2013, Dr. Schmucker noted
that plaintiff “really struggles” and suffered from “cough, congestion, wheeze, [and]
shortness of breath.” Id. at 93. Dr. Schmucker increased plaintiff’s methadone and
Zyprexa dosage and sent her for x-rays of her spine, pelvis, and hips. Id. On July 31,
2013 Dr. Schmucker noted in the “History” section of his progress record that plaintiff
“generally really struggles significantly,” though he did not note any specific worsening
of plaintiff’s symptoms. Id. at 34.
On October 7, 2013, plaintiff was hospitalized in the intensive care unit at
Arkansas Valley Regional Medical Center due to respiratory failure attributed to her
COPD. R. at 15. On October 30, 2013, Dr. Schmucker diagnosed plaintiff with “[r]ight
heart failure” and “[i]nterstitial lung disease.” Id. at 71. Beginning in November 2013,
plaintiff began oxygen therapy. Id. at 55-64. From December 3-9, 2013, plaintiff was
again hospitalized at Arkansas Valley Regional Medical Center due to pneumonia and
an overdoes of narcotic medication and use of crystal methamphetamine. Id. at 42.
Dr. Schmucker treated plaintiff on December 17, 2013 and January 6, 2014. Id. at 80,
77. On February 24, 2014, Dr. Schmucker completed a “Medical Statement Regarding
[COPD] for Social Security Disability Claim Where Smoking is Issue.” Id. at 7-9. Dr.
Schmucker opined that plaintiff was limited to working four hours per day, standing no
more than 15 minutes at one time, sitting no more than an hour at a time, and lifting no
more than 10 pounds frequently. Id. at 8.
Plaintiff argues that Dr. Schmucker’s February 24, 2014 statement concerning
plaintiff’s limitations provides additional support to Dr. Satt’s opinion, Docket No. 15 at
25, and that the newly-acquired records “strengthen [plaintiff’s] claim for disability and
should have affected the decision as to wheter [sic] [plaintiff] was disabled during the
applicable time period.” Docket No. 19 at 6. The Court disagrees. Plaintiff does not
explain how Dr. Schmucker’s opinion of her limitations in February 2014 lends any
support to Dr. Satt’s opinions dated May and August, 2012. Notably absent from the
new evidence that plaintiff submitted is any evidence from a medical source
concerning plaintiff’s condition on or before March 1, 2013. Cf. O’Dell, 44 F.3d at 859
(rejecting new evidence submitted to the Appeals Council that “only describes the
effect of claimant’s combined conditions in December 1992, and contains no opinion
as to the severity of these conditions two years earlier,” during the period relevant to
the ALJ’s decision). The ALJ noted that there was no evidence that plaintiff’s condition
had deteriorated between December 2011 and the date of the ALJ’s decision, R. at
116, and that plaintiff’s x-rays remained stable between May and December 2011. Id.;
see also id. at 667, 692. Plaintiff does not point to any newly-submitted evidence
suggesting that her condition deteriorated before the ALJ’s March 1, 2013 order.
Although Dr. Schmucker’s opinions may reflect that plaintiff’s condition worsened
beginning in May 2013, they do not support plaintiff’s claim that she was disabled
before March 1, 2013. Thus, the Appeals Council did not err when it declined to
consider the newly-submitted evidence.
For the foregoing reasons, it is
ORDERED that the decision of the Commissioner that plaintiff Tammy Jan
Deason was not disabled is AFFIRMED.
DATED September 28, 2015.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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